The Writ Petition is directed against the impugned order of the respondent dated 22.6.2009 by which the respondent has debarred the petitioner from writing examinations for the period of three years and also cancelling the examination taken up by the petitioner in the plus two examination held in March 2009.
2. The petitioner is stated to be a student of plus two at Sowdambiga Matric Higher Secondary School, Thuraiyur, Trichy District and he was taking up the examinations held in March, 2009. When he was taking his physics examination on 9.3.2009, it is stated that one Stalin, who is stated to be the teacher of the petitioner, taken his question paper and at the time when the respondent squad team came to the examination hall found that the question paper was not with the petitioner and it was those circumstances, criminal case was lodged against the petitioner, the said teacher - Stalin and the Principal of the school. The petitioner was produced before the Juvenile Court and released. It is stated that when a show cause notice was issued by the respondent on 15.4.2009 for the proposed punishment of debarring the petitioner from writing examinations for a period of three years, he has submitted his detailed explanation and inspite of that no orders have been passed, the petitioner has approached this Court by way of filing Writ Petition in W.P.No.10822 of 2009. When the said writ petition came up before this Court on 23.6.2009, it was informed by the learned counsel for the respondent that the impugned order has already been passed debarring the petitioner and cancelling the examinations written by him as stated above. In these circumstances, the said Writ Petition was dismissed with liberty to the petitioner to file fresh writ petition challenging the impugned order. Based on which the present writ petition is filed.
3. The impugned order is challenged on the ground that the petitioner has not committed any mal practice, that it was only the said teacher, Stalin, who has forcibly taken the question paper and that he has not either copied in the examination or comitted any mal practice. It is also questioned on the ground that principles of natural justice has not been followed and fair opportunity has not been given.
4. In the counter affidavit filed by the respondent, it is stated that the Sowdambiga Matriculation Higher Secondary School is the examination centre for the public examination held in March, 2009. When the flying squad visited the centre on 09.03.2009, it was found that the petitioner, who was writing the Physics examination in the centre did not possess the question paper distributed to him. It was found by the flying squad that the petitioner has clandestinely handed over the Physics question paper to the school teacher Stalin for getting correct answers written on it. According to the respondent, as per the Rules in existence, the student in the examination hall should retain the question paper and for the offence of sending out the question paper, the punishment is the examination would be cancelled and the student will not be permitted to write examination for another six sessions, namely, three years. The competent authority to impose such punishment is Secretary, Board of Higher Secondary Examinations and Joint Director of Government Examination, (H.S) Chennai.
5. It is stated that pursuant to Rule 11, a show cause notice was issued to the petitioner on 8.4.2009 by the Joint Director of Examinations (Higher Secondary) and Secretary, State Board of School Examinations, Chennai. It is stated that the act of the petitioner in giving the question paper to Mr.Stalin would amount to an intentional act of mal practice and the impugned order has been passed after giving opportunity to the petitioner who has also given his explanation dated 26.4.2009. It is stated that in the explanation, he has again reieterated the same stand admitting that the question paper was not with him at the time when the flying squad visited the examination hall. It is also stated that criminal case is filed against the petitioner, Thiru.Stalin and Thiru.Ramasamy, Principal of Sowdambiga Matriculation Higher Secondary School and the same is pending. Taking note of the serious nature of the conduct of the petitioner, the impugned order came to be passed by cancelling the examinations written by the petitioner and also debarring him from writing examinations for six sessions, namely, for three years.
6. Learned Government Advocate has contended that opportunity has been given to the petitioner, who has given explanation. She also contends that in the explanation, the petitioner has admitted the commission of mal practice and therefore, the question of further opportunity to be given to the petitioner does not arise. In the examination matters, rowing enquiry is not permitted and prima facie if it is found that mal practice has been committed, in the interest of strict discipline, serious action would be taken and that cannot be questioned. She also produced the entire records relating to the said matter.
7. I have gone through the records. On 09.03.2009, in the examination hall wherein the petitioner was taking Physics examination, the flying squad headed by Mr.R.Palaniappan, CEO has found that the petitioner was not in possession of the question paper and the petitioner has given a written statement to him on 9.3.2009 wherein he has stated that after receiving the question paper at 10.00 a.m., he was proceeding to write the answer and by 10.15 a.m., his teacher Stalin has forcibly taken away the question paper through window stating that he would give the answers in the question papers. It was at that time, the flying squad have entered into the examination hall. This is all the statement given by the petitioner on 9.3.2009.
8. It is relevant to point out that the flying squad member Mr.R.Palaniappan, CEO in his statement on 9.3.2009 while stating that at the time of his inspection, the petitioner was not in possession of the question paper and on enquiry, the petitioner has informed him that Thiru.Stalin on assurance of getting answers in respect of single line answers has forcibly taken away the question paper The relevant portion of his statement reads as follows:
"mtdplk; JUtp/ JUtp tprhhpj;jnghJ mg;gs;spapd; M';fpy Mrphpah; jpU/!;lhypd; vd;gth; 1? kjpg;bgz; tpdhf;fSf;F kw;w khzth;fSf;F tpilaspg;gjw;fhf vd;dplk; ,Ue;j nfs;tpj;jhis gyte;jkhf btspapy; gwpj;J brd;Wtpl;lhh; vd;W mk;khztd; vd;dplk; bjhptpj;jhd;/@ Therefore, the first statement of the CEO flying squad member is the information given by the petitioner to the effect that the said teacher Stalin has removed the question paper forcibly so as to give answer to other students, but not to the petitioner.
9. In the reply to the show cause notice, the petitioner on 26.4.2009 while reieterating his stand which he has taken on 9.3.2009 by way of statement given to the flying squad has stated that the removal of question paper by the teacher is only to increase the image of the said School by giving the answer to the students by teachers themselves. He has also stated that it was with a view this sort of activities were going on in the school and the petitioner has been made as a scape goat even though he has not committed any mal practice. In the statement given by the CEO, who is a member of the flying squad, he has categorically stated about the information given by the petitioner that some of the teacher has forcibly removed the question paper with a view to give answers to other students and also the explanation given by the petitioner shows that the petitioner has not been caught by committing mal practice, in the sense, that such answer has never been given to the petitioner and the petitioner has not used such answer borrowed from third party in his answer papers. A reference to the answer paper, which is also on record shows that it is only four lines answers written, because the question paper was given to him by 10.00 a.m. and the answer paper was collected by 10.15 a.m., i.e., within 15 minutes from the starting of the examination, the petitioner has been caught and sent out of the examination hall.
10. Learned Government Advocate placed reliance on the Scheme for the Award of Higher Secondary Course Certificates as issued by the Government on 22.12.1982. In Chapter II, which speaks about the Board of Higher Secondary Examination, nowhere defines about the examination mal practice, neverthelss, Chapter X, which speaks about the punishment to be awarded to the candidates resorted to mal practice, in Clause 11, it is stated as follows:
"Sending out the question paper cancellation of performance at the examination and debarment upto a period of three years, i.e., six, subsequent examinations."
11. In the absence of any procedure prescribed for the purpose of conducting enquiry in finding out the mal practice, it is incumbent on the part of the respondent to follow the basic principles of natural justice and fairness. The reason being that by declaring a person having committed mal practice, it is not only causing a stigma on the life of a student, but also by cancelling the examinations and debarring him for further three years would certainly cause enormous damages to the life of an youngster and therefore, it is necessary that unless there is a proper proof to show that mal practice has been committed, the authority should be careful in imposing such punishment. Such punishments in the event of a person being innocent would only make him a bad citizen or even anti-social element and that is not the idea of conferring such powers to the educational authorities to prevent mal practice. In the guise of preventing mal practice, it is certainly not open to the educational authorities to interfere with the life of a person and it can also be said that right to live is guaranteed under
Article 21 of the Constitution of India, as a fundamental right includes right to live as a decent citizen.
12. In the present case, on record as I have analysed, there is nothing to show that the petitioner was actually involved in mal practice. The examination mal practice normally we understand is that copying in an examination hall or having answer sheets or answer papers, which are treated as incriminating materials and on the seizure of such incriminating materials and enquiries conducted, of course, rowing enquiry is not possible in educational matters, prima facie the authority must be satisfied that the intention of the candidate is to commit mal practice and that is the subjective satisfaction of the authority, which has to be exercised in a proper manner. On the facts of the case, the CEO himself has stated that at the time when he caught the petitioner on the basis that there was no question paper with him, he was informed that some teacher has taken away by force through window stating that he would give the single line answer, which is useful to other students and not to the petitioner. If that is the first information, which is available on record, it is not known as to how the respondent has come to a conclusion that the petitioner was involved in examination malpractice. Such a hasty conclusion are not permissible for the educational authorities, especially while dealing with a life of an youngster.
13. One other aspect, which is relevant at this point of time is that Chapter 10 of the Scheme for the Award of Higher Secondary Course Certificates. It is relied on by the learned counsel for the respondent that imposing punishment in mal practice, which says in Clause 13 that copying was detected on the basis of internal evidence, the proposed punishment is cancellation of performance besides debarring for the two subsequent examinations. On the other hand, for sending out of the question paper, the proposed punishment is cancellation of performance at the examination and debarment upto a period of three years i.e., six subsequent examinations.
14. Therefore, when the examiner found that the question paper was not available with the student at the time when inspection was made, it is the duty of the examiners to find out the proper reason for such absence of the question paper like by the absence of such question paper, the student has been benefitted or he has committed mal practice in writing the examination. Therefore, in my considered view the word 'sending out the question paper' should be read in addition to some other overt act on the part of the student in getting some benefit out of the sending away of question papers from the examination hall. Merely because the petitioner has admitted that at the time when the flying squad has visited, the question paper was not available with him, no presumption can be made that the petitioner was involved in examination mal practice. In the absence of any material to show that the petitioner has committed examination mal practice, as it has is known in common parlour, I do not agree with the contention of the learned Government Advocate that the enquiry was conducted in a proper manner and opportunity has been given.
15. In such view of the matter, the impugned order of the respondent dated 22.06.2009 is set aside and the Writ Petition is allowed. It is made clear that if any criminal case is pending against the petitioner and others, it is for the law to take its own course of action. It is stated that after 09.03.2009 incident, the petitioner was allowed to write other examinations. The respondent is directed to release the result of the other examinations written by the petitioner and permit the petitioner to write the physics examination in the next session. No costs. Consequently, M.P.Nos. 1 and 2 of 2009 are closed.
19.08.2009 sl Index:Yes Internet:Yes To The Joint Director of Government Examination/ Secretary Higher Secondary Examinations, DPI Compound, College Road, Chennai 6.
P.JYOTHIMANI,J.
sl Writ Petition No.12664 of 2009 & M.P.Nos. 1 and 2 of 2009 19.08.2009